Citation Nr: 0736638
Decision Date: 11/21/07 Archive Date: 12/06/07
DOCKET NO. 05-25 079 ) DATE
)
)
On appeal from the
Department of Veterans Affairs Regional Office in
Albuquerque, New Mexico
THE ISSUE
Entitlement to service connection for post traumatic stress
disorder, to include as the result of personal assault.
REPRESENTATION
Appellant represented by: Disabled American Veterans
ATTORNEY FOR THE BOARD
J.G. Reinhart, Associate Counsel
INTRODUCTION
The veteran served on active duty from November 1974 to
February 1980.
This matter comes to the Board of Veterans' Appeals (Board)
on appeal from a June 2004 rating decision of the Department
of Veterans Affairs (VA) Regional Office (RO) in Albuquerque,
New Mexico.
FINDING OF FACT
The veteran's alleged inservice stressors have not been
verified.
CONCLUSION OF LAW
The criteria for service connection for PTSD have not been
met. 38 U.S.C.A. §§ 1110, 1131(West 2002); 38 C.F.R. §§
3.303, 3.304(f) (2007).
REASONS AND BASES FOR FINDING AND CONCLUSION
Establishing service connection for PTSD requires (1) a
current medical diagnosis of PTSD; (2) credible supporting
evidence that the claimed in-service stressor actually
occurred; and (3) medical evidence of a causal nexus between
current symptomatology and the specific claimed in-service
stressor. See 38 C.F.R. § 3.304(f). The diagnosis of PTSD
must comply with the criteria set forth in the Diagnostic and
Statistical Manual of Mental Disorders, 4th edition, of the
American Psychiatric Association (DSM-IV). Id., see also 38
C.F.R. § 4.125(a) (2007).
This case turns on the second required element listed above,
the occurrence of an in-service stressor. Here, the veteran
does not allege that her PTSD resulted from combat with the
enemy and the record is absent for any evidence that the
veteran engaged in combat with the enemy. Therefore, her lay
testimony cannot, by itself, establish the occurrence of the
alleged stressor. See Zarycki v. Brown, 6 Vet. App. 91, 98
(1993). Instead, the record must contain corroborative
evidence that substantiates or verifies the veteran's
testimony or statements as to the occurrence of the claimed
stressor. See West v. Brown, 7 Vet. App. 70, 76 (1994).
If PTSD is based on personal assault, as alleged in this
case, evidence from sources other than the veteran's records
may corroborate the occurrence of the stressor. 38 C.F.R. §
3.304(f)(3). Examples of such evidence include, but are not
limited to: records from law enforcement authorities, mental
health counseling centers, hospitals or physicians; and
statements from family members, roommates, fellow service
members, or clergy. Id.
Evidence of behavior changes following the claimed assault is
one type of relevant evidence that may be found in the
mentioned sources. Examples of behavior changes that may
constitute credible evidence of the stressor include, but are
not limited to: a request for a transfer to another military
duty assignment; deterioration in work performance; substance
abuse; episodes of depression, panic attacks, or anxiety
without an identifiable cause; or unexplained economic or
social behavior changes. Id.
In Patton v. West, 12 Vet. App. 272, 277 (1999), the United
States Court for Veterans Claims (Court) advised that the
portions of the VA Adjudication Procedure Manual M21-1, Part
III, paragraph 5.14c, provided "guidance on the types of
evidence that may serve as 'credible supporting evidence' for
establishing service connection of PTSD which allegedly was
precipitated by a personal assault during military service."
Manual M21-1 lists evidence that might indicate occurrence of
such a stressor, including lay statements describing episodes
of depression; panic attacks or anxiety but no identifiable
reasons for the episodes; visits to medical clinics without a
specific ailment; evidence of substance abuse; and increased
disregard for military or civilian authority. The Manual
also lists behaviors such as requests for change of MOS or
duty assignment, increased use or abuse of leave, changes in
performance and performance evaluations, increased use of
over-the-counter medications, unexplained economic or social
behavior changes, and breakup of a primary relationship as
possibly indicative of a personal assault, provided that such
changes occurred at the time of the incident. The Court has
also held that the provisions in M21-1, Part III, 5.14(c),
which address PTSD claims based on personal assault are
substantive rules which are the equivalent of VA regulations,
and are binding on VA. YR v. West, 11 Vet. App. 393, 398-99
(1998); Patton, 12 Vet. App. at 272.
VA will not deny a PTSD claim that is based on in-service
personal assault without first advising the claimant that
evidence from sources other than the veteran's service
records or evidence of behavior changes may constitute
credible supporting evidence of the stressor and allowing her
the opportunity to furnish this type of evidence or advise VA
of potential sources of such evidence. 38 C.F.R. § 3.304(f).
In this case, by letter dated December 5, 2003, including an
enclosed PTSD questionnaire, the veteran was asked to
identify sources in addition to her records, and provide
evidence of behavior changes to corroborate the occurrence of
her claimed stressors.
In a PTSD questionnaire, received in January 2004, the
veteran asserted a number of inservice stressors. She has
essentially reiterated these assertions in later
communications.
In that questionnaire, the veteran contends that she was
subjected to sexual harassment and assault while stationed in
Pensacola, Florida between 1975 and 1978. Specifically, that
her supervisor, Chief "G", "fondled me emotionally [and]
mentally tried to control me", bullied her into dating his
friends, made derogatory remarks of a sexual nature, showed
up at her trailer, drunk, expecting to have sex with her, and
retaliated against her for not having sex with him by giving
her unpleasant assignments and not talking to her. She also
states that she was subjected to racial slurs at this time
because one of her friends was black.
Additionally, she reported that at one point she arrived at
the base dental office and was told to go to an x-ray
darkroom where she was fondled by an unknown person. The
veteran contends that she complained about Chief G to an
officer, Lieutenant "H", at that duty station. Finally,
she stated that after three years or this treatment she
transferred to a duty station in Spain.
The veteran also claims stressors she contends occurred
between 1978 and 1980, at her next duty station in Rota,
Spain. Specifically, that a male coworker, who was a
"Spanish National" harassed her by suggesting that they
"'would be good together' on [and] on [and] on." She
reports that she later told her fiancé of this, who in turn
approached her co-worker's supervisor, that the co-worker
denied the allegations, and the veteran was forced to
apologize. She further contends that she was told to "keep
quiet or get thrown out of Spain" and that she was unaware
that the co-worker had a sibling who carried a very high rank
in the Spanish military.
Finally, the veteran stated that this co-worker continued to
make inappropriate sexual comments to her and that by the
time it came for her to reenlist, he had ruined her career.
In response to a PTSD questionnaire section asking the
veteran to identify other sources of information regarding
her alleged stressors, the veteran stated that she did not go
into therapy until she left her husband after 21 years of
marriage. She argued that she had problems with her second
marriage, and explains that her therapist has told her that
sexual harassment during service may have contributed to her
marital problems.
Neither service personnel nor service medical records, which
are very detailed, make mention of any assaults, coerced
sexual activities, or reports of inappropriate behavior by
the veteran's supervisor or from any other persons, providing
evidence against this claim.
Service medical records contain an October 1976 report of
epigastric pain, tension, "bad nerves, tensed up" and that
the veteran was tearful. That note reports that the veteran
was single and had experienced an increase in symptoms since
an engagement was broken two weeks earlier. She was
prescribed psychological counseling.
The Board must find that the report of 1976 provides evidence
against the PTSD claim, clearly indicating a problem not
associated with the stressors cited above as the basis of her
problem at that time. Importantly, while the veteran noted
to this doctor that an engagement was broken two weeks
earlier, she failed to note any of the problems she now cites
as the basis for her PTSD claim, undermining her current
statements to the Board.
A February 1980 report of medical history contains the
veteran's endorsement that she did not then have, nor had
ever had, nervous trouble of any sort or depression or
excessive worry, providing more evidence against this claim.
An enlisted performance record is contained in service
personnel records received from the National Personnel
Service Center. This shows that the veteran received
professional performance ratings either improving or
remaining the same from July 1975 to July 1978, the only
exception being a decrease in military behavior from 3.8 to
3.6 from January 1978 to July 1978, but with an increase in
ratings in all other categories during this same period (3.8
to 4.0 in professional performance, 3.8 to 4.0 in military
appearance, 3.6 to 3.8 in adaptability). She was recommended
for advancement to enlisted pay grade 5 (SK2) in July 1978
and advanced to SK2 in December 1978. A December 1979 entry
indicates a different rating standard, showing the veteran to
be rated as EEU for professional performance, SUU for
military behavior, SUU for leadership and supervisory
ability, and EEU for military appearance. Of note is that
prior to advancement to SK2, the column for leadership and
supervisory ability was marked as not observed.
Although not included in the records obtained by VA, the
veteran has submitted a performance evaluation report for the
period from August 1978 to December 1979. This report
contains a reference for the meaning of abbreviations used to
rate enlisted pay grades 5 and 6 and indicates that SUU
stands for superior to most (upper), EEU stands for typically
effective (upper) and IMP stands for impressive (appearance
only). This also provides that XEM stands for exemplary
(conduct only). Other than the codes listed for 'not
observed' and those used only for conduct and appearance, the
available codes cover a 10 step range, increasing in quality
from the first to the tenth.
This evaluation shows that the veteran received a mark of EEU
(the sixth mark out of the ten) for direct, counsel, conduct,
and overall performance. She received a mark of EEL (fifth
out of the ten) for flexibility, cooperation, intercultural
relations, and for an equal opportunity category. She
received an SUU (seven out of the ten) for reliability and
she received the highest available mark for personal
appearance.
This report also provides a narrative that is both positive
and negative. For example, on a positive note, the narrative
states that the veteran did an excellent job and that any
task that allowed her to work independently, and did not
involve other people was accomplished in a professional
manner. This narrative also contained the following:
Since being advanced in November 1978
Petty Officer [the veteran] has
experienced difficulty in assuming the
duties and responsibilities of a second
class petty officer. Her knowledge of
her rating is above her contemporaries
but she has encountered problems in her
ability to manage people as a supervisor.
Her leadership style tends to create
hostility in the work center due to her
authoritarian approach. Petty officer
[the veteran] also had some minor
problems getting along with people in the
department, especially with the host
Spanish Nationals. She has at times
shown indifferent attitude towards them
and has uttered pharses [sic] which are
not conducive to a good intra-cultural
relations. She has been counseled
concerning this trait and its effect upon
the department and the command.
The veteran also submitted an evaluation report for the
period between February 1978 and July 1978. This report
contains no negative comments in the narrative. Marks given
in this report are on another scale, but with ten options.
She received the highest mark for military appearance, the
second highest (ninth out of the ten) for adaptability, the
third highest mark (seventh out of ten) for military
behavior, and the highest mark for professional performance.
Leadership and supervisory ability was marked as "not
observed".
The Board finds that the reports of her conduct during
service, overall, provide more evidence against this claim,
failing to indicate PTSD symptoms or problems that might
indicate a PTSD/assault case, as indicated within Manual M21-
1.
In a September 2007 statement, the veteran's representative
argued that the decrease in performance marks in the period
from August 1978 to December 1979 constitutes a "behavior
change" indicative of personal assault. He also argued that
the references to the veteran's difficulties with Spanish
Nationals reflects the above described harassment by the co-
worker in Spain, who was a Spanish National.
The Board does not find this argument persuasive. During the
evaluation period of August 1978 to December 1979, the
veteran had been promoted to a pay grade that included
supervisory duties. There was no previous evaluation period
with which to compare her behavior in a supervisory position.
Thus, this report does not reflect any change in behavior.
That the veteran appears to have had cultural difficulties
with Spanish Nationals is not evidence that she was
traumatized by a co-worker who happened to be a Spanish
National. Any finding that her cultural difficulty with
Spanish Nationals resulted from some such trauma would amount
to no more than mere speculation. Mere speculation does not
fall within the meaning of reasonable doubt afforded to
veterans on evidentiary matters. See 38 C.F.R. § 3.102.
In short, the Board does not find the veteran's lack of
exemplary performance as a supervisor or her cultural
difficulty with Spanish Nationals to be evidence of a
"behavior change".
Also considered by the Board is the veteran's statement in
her March 2005 letter regarding her transfer to a duty
station in Rota, Spain. She stated that
During the end of my tour in Pensacola,
12/77, Sr. Chief tried to get me a tour
in HI. He had it all arranged, without
much input from me, then went on annual
leave. Another coworker ... had me call
the 'detailer' in DC and during the
course of a couple of days; I had decided
not to go to HI but decided on a tour to
Rota, Spain. When Sr. Chief found out
that I had changed my tour without asking
him, he not only ignored me, but would
not come into the same room with me. For
2 weeks he continued this behavior, not
at all acknowledging me as a Sailor,
female, coworker, human being, nothing.
I had to call him at his home to finally
explain to him about what had transpired.
I was insane! I was becoming insane.
To the extent that the veteran seeks to show that she sought
a transfer to avoid the work situation with Chief G., service
personnel records provide a rather different picture of these
events, undermining the veteran's contentions and providing
evidence against her claim.
A document from September 1977 shows that a request was made
to the Chief of Naval Personnel to extend the veteran's
enlistment for six months so that she could make a decision
regarding career intentions. That same month, a detailer,
SK1 "W", disapproved the request because the veteran was
ineligible for extended shore duty. This document states
that if the veteran should desire to reenlist under the Guard
II program or extend enlistment for an overseas assignment,
she was invited to contact the detailer. A document dated in
November 1977 shows that the veteran extended her enlistment
for an additional 27 months for no promise made to her except
guaranteed duty in Rota, Spain.
These service personnel records provide strong evidence
against any finding that the veteran was motivated by
stressors, including any personal assault, to transfer to
Spain. Rather, she was simply ineligible to remain on shore
duty unless she elected one of two options, which she did
elect (the duty overseas). Obvious from these records is
that the U.S. Navy, not the veteran, decided that she could
not extend her shore duty in the United States.
The Board finds the documents highly probative that the
veteran's duty station transfer overseas is not evidence of
an inservice stressor experienced at her Florida duty
station. Additionally, although the veteran reports that she
told a military officer, Lieutenant H, of the alleged actions
of Chief G, there are no reports in her personnel folder to
this effect in very detailed records. This is more evidence
against a finding that this alleged stressor causing PTSD
occurred.
Post-service evidence of record similarly provides evidence
against the veteran's claim as it does not tend to verify her
claimed stressors.
Post-active service military medical records show that the
veteran was found to have premenstrual syndrome mood swings.
January 1998 notes from Kaiser Permanente show that the
veteran was treated for classic premenstrual syndrome
depression. Additional records from this provider show that
the veteran was prescribed Paxil as do records from the
Sandia Health System from January 2003. July 2002 treatment
notes from St. Joseph Healthcare report that the veteran
suffered from anxiety and depression from stress caused by
her husband's drinking.
The fact that the veteran made reference to a post-service
stressor (husband's drinking) rather than a service stressor
(assaults/harassment in service) provides highly probative
factual evidence against this claim.
Insurance forms, from Cimarron Health Plan, document mental
health treatment of the veteran by M.B.-D., Ph.D., from July
2001 to October 2001. These documents, and a narrative by
M.B-D, refer to post-service events and document treatment of
the veteran for depression. These records indicate that PTSD
was not applicable to the veteran's case, providing yet more
evidence against this claim.
Of record is a letter and mental health treatment notes from
"J.W.", LISW, Ph.D. In an October 2005 letter, this
practitioner stated that she first treated the veteran for
depression in November 2003, referred her for inpatient
hospitalization and had a post-service follow-up visit with
the veteran in November 2003. Treatment notes from November
2003 report the veteran's experiences with her then current
spouse and a prior spouse. These notes record that the
veteran had military service but do not refer to incidents
during that service.
Simply stated, none of these aforementioned post-service
records make any mention of PTSD or of any incidents during
the veteran's military service, providing extremely probative
evidence against the PTSD claim.
VA treatment records from December 2006, list a diagnosis of
PTSD. These records contain the veteran's report of the
above referenced inservice stressors as well as the recent
death of her second husband. Specifically, the notes refer
to the veteran being "farmed out" for sexual favors to her
supervisor's friends while stationed in Florida, and being
subjected to sexual harassment while stationed in Spain. VA
clinic notes from March 2007 also contain the veteran's
reports of being physically abused over the prior five years
by her husband, including that she was assaulted at knife and
gunpoint.
In general a medical provider cannot provide supporting
evidence that a claimed inservice event actually occurred,
based merely on a post-service medical examination. Moreau
v. Brown, 9 Vet. App. 389, 395-96 (1996). The Board is
cognizant of the Court's later statements that its language
in Moreau was stated in the context of PTSD claims based on
other than personal assault. Patton v. West. 12 Vet. App.
272, 280 (1999). The Court explained that, to the extent
that the M21-1 required special development for personal
assault PTSD claims, "including interpretation of behavior
changes by a clinician and interpretation in relation to a
medical diagnosis" the categorical rejection stated in
Moreau was not operative. Id. In so doing, the Court cited
YR v. West, 11 Vet. App. 393,397-99(1998).
In YR, the Court found that the Board had failed to discuss
evidence obtained under hypnosis by a mental health
professional, of an alleged rape during service. Id.
Here, the Board affords no probative value to the restatement
of the veteran's alleged stressors by a VA clinician or to
the veteran's report that a therapist told her that her
marital problems may be the result of earlier sexual
harassment. These reports are not hypnosis derived accounts
but merely the same reports from the veteran communicated to
a mental health professional rather than to the RO. Under
these circumstances, the mere fact that the mental health
professional believed these accounts does not act as
corroboration of the alleged events. To find otherwise would
nullify the requirement for corroboration of noncombat
stressors by other than the veteran's own accounts of those
stressors. Although there are special evidentiary
requirements for PTSD claims based on personal assault, those
requirements do not amount to accepting the veteran's account
of events, reported more than 20 years after the alleged
occurrence of the events, merely because that account was
repeated by a mental health professional.
Furthermore, the complete absence of any mention of inservice
stressors not only during service, but not until over 20
years after the alleged occurrence of the events, provides
some evidence against finding that the events occurred.
The Board has considered whether a medical opinion is
necessary to determine if any behavior changes during service
corroborate the veteran's accounts. However, upon review of
her service personnel and medical records and as explained
above, the Board finds no behavior changes during service or
even anytime shortly after service. Thus, the opinion of a
medical professional as to her August 1978 to December 1979
evaluation would not provide additional probative evidence in
this case.
Based on the above, the Board finds that no credible
supporting evidence to corroborate the inservice stressors
alleged by the veteran and significant evidence against such
a finding. In sum, the preponderance of evidence of record
is against a finding of verification of the occurrence of the
alleged inservice stressors. As such, the claim for
entitlement to service connection for PTSD must be denied.
The evidence in this case is not so evenly balanced so as to
allow application of the benefit-of- the-doubt rule. Gilbert
v. Derwinski, 1 Vet. App. 49 (1990); 38 U.S.C.A. § 5107(b);
38 C.F.R. § 3.102 (2007).
Duties to notify and assist
As provided for by the Veterans Claims Assistance Act of 2000
(VCAA), the United States Department of Veterans Affairs (VA)
has a duty to notify and assist claimants in substantiating a
claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103,
5103A, 5107, 5126 (West 2002 & Supp. 2007); 38 C.F.R.
§§ 3.102, 3.156(a), 3.159 and 3.326(a) (2007).
Upon receipt of a complete or substantially complete
application for benefits, VA is required to notify the
claimant and his or her representative, if any, of any
information, and any medical or lay evidence, that is
necessary to substantiate the claim. 38 U.S.C.A. § 5103(a);
38 C.F.R. § 3.159(b); Quartuccio v. Principi, 16 Vet. App.
183 (2002). Proper notice from VA must inform the claimant
of any information and evidence not of record (1) that is
necessary to substantiate the claim; (2) that VA will seek to
provide; (3) that the claimant is expected to provide; and
(4) must ask the claimant to provide any evidence in her or
his possession that pertains to the claim in accordance with
38 C.F.R. § 3.159(b)(1). This notice must be provided prior
to an initial unfavorable decision on a claim by the agency
of original jurisdiction (AOJ). Mayfield v. Nicholson, 444
F.3d 1328 (Fed. Cir. 2006); Pelegrini v. Principi, 18 Vet.
App. 112 (2004).
In Dingess v. Nicholson, 19 Vet. App. 473 (2006), Court held
that, upon receipt of an application for a service-connection
claim, 38 U.S.C. § 5103(a) and 38 C.F.R. § 3.159(b) require
VA to review the information and the evidence presented with
the claim and to provide the claimant with notice of what
information and evidence not previously provided, if any,
will assist in substantiating, or is necessary to
substantiate, each of the five elements of the claim,
including notice of what is required to establish service
connection and that a disability rating and an effective date
for the award of benefits will be assigned if service
connection is awarded.
Here, the VCAA duty to notify, with regard to all but
assignment of disability ratings and effective dates, was
satisfied by way of letters sent to the appellant on December
5, 2003 and April 7, 2004 that fully addressed all four
notice elements and were sent prior to the initial AOJ
decision in this matter. These letters informed the
appellant of what evidence was required to substantiate her
claim and of the appellant's and VA's respective duties for
obtaining evidence. The appellant was also asked to submit
evidence and/or information, which would include that in her
possession, to the AOJ.
Here, the duty to notify with regard to assignment of
disability ratings and effective dates was not satisfied
prior to the initial unfavorable decision on the claim by the
AOJ. Under such circumstances, VA's duty to notify may not
be "satisfied by various post-decisional communications from
which a claimant might have been able to infer what evidence
the VA found lacking in the claimant's presentation."
Rather, such notice errors may instead be cured by issuance
of a fully compliant notice, followed by readjudication of
the claim. See Mayfield v. Nicholson, 444 F.3d 1328 (Fed.
Cir. 2006) (where notice was not provided prior to the AOJ's
initial adjudication, this timing problem can be cured by the
Board remanding for the issuance of a VCAA notice followed by
readjudication of the claim by the AOJ) see also Prickett v.
Nicholson, 20 Vet. App. 370, 376 (2006) (the issuance of a
fully compliant VCAA notification followed by readjudication
of the claim, such as an SOC or SSOC, is sufficient to cure a
timing defect).
In this case, the VCAA duty to notify with regard to
assignment of disability ratings and effective dates was
satisfied subsequent to the initial AOJ decision by way of a
letter sent to the appellant on March 20, 2006. Although the
notice letter was not sent before the initial AOJ decision in
this matter, the Board finds that this error was not
prejudicial to the veteran because the actions taken by VA
after providing the notice have essentially cured the error
in the timing of notice. Not only has the veteran been
afforded a meaningful opportunity to participate effectively
in the processing of her claim and given ample time to
respond, but the AOJ also readjudicated the case by way of
supplemental statements of the case issued on August 25, 2006
and April 20, 2007, after the notice was provided. For these
reasons, it is not prejudicial to the veteran for the Board
to proceed to finally decide this appeal as the timing error
did not affect the essential fairness of the adjudication.
VA has a duty to assist the veteran in the development of the
claim. This duty includes assisting the veteran in the
procurement of service medical records and pertinent
treatment records and providing an examination when
necessary. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159.
In determining whether the duty to assist requires that a VA
medical examination be provided or medical opinion obtained
with respect to a veteran's claim for benefits, there are
four factors for consideration. These four factors are:
(1) whether there is competent evidence of a current
disability or persistent or recurrent symptoms of a
disability; (2) whether there is evidence establishing that
an event, injury, or disease occurred in service, or evidence
establishing certain diseases manifesting during an
applicable presumption period; (3) whether there is an
indication that the disability or symptoms may be associated
with the veteran's service or with another service-connected
disability; and (4) whether there otherwise is sufficient
competent medical evidence of record to make a decision on
the claim. 38 U.S.C. § 5103A(d) and 38 C.F.R. § 3.159(c)(4).
With respect to the third factor above, the Court has stated
that this element establishes a low threshold and requires
only that the evidence "indicates" that there "may" be a
nexus between the current disability or symptoms and the
veteran's service. The types of evidence that "indicate"
that a current disability "may be associated" with military
service include, but are not limited to, medical evidence
that suggests a nexus but is too equivocal or lacking in
specificity to support a decision on the merits, or credible
evidence of continuity of symptomatology such as pain or
other symptoms capable of lay observation. McLendon v.
Nicholson, 20 Vet. App. 79 (2006).
In this case, the Board finds that the preponderance of
evidence is against a finding of the occurrence of the second
factor listed above, an in-service event, disease, or injury.
As explained above, the Board finds none of the factors, such
as behavior changes, that may require a medical opinion in
PTSD claims based on personal assault, to be present in this
case. More importantly, the Board finds that there is
significant evidence against such a finding. Remanding this
case to obtain a medical opinion could not substantiate the
veteran's inservice stressor because there is simply no
evidence contemporaneous to the alleged occurrence of the
claimed inservice stressors. Furthermore, absent credible
evidence of the alleged stressors, a diagnosis that the
veteran suffers from PTSD would not change the outcome of
this decision. For these reasons, the Board declines to
afford the veteran a VA examination or obtain a medical
opinion.
The Board finds that all necessary development has been
accomplished, and therefore appellate review may proceed
without prejudice to the appellant. See Bernard v. Brown, 4
Vet. App. 384 (1993). Service medical records and VA
treatment records are associated with the claims file. Also
of record are private treatment records and/or letters from
the Cimarron Health Plan; "J.C.", LISW, PhD; the Sandia
Health System; Kaiser Permanente, and St. Joseph's
Healthcare.
In September 2005, the veteran provided VA with Authorization
and Consent to Release Information forms for treatment
records from "S.P.", LISW, "M.B.-D.", LPPC, and Memorial
Hospital. VA subsequently requested these records without
success.
In January 2006, the RO informed the veteran that records
from these sources had not been obtained and that it was her
responsibility to make sure VA received the records. A note
dated in April 2006, indicates that the veteran was unable to
locate the records of "M.B.-D." and "S.P." and requested
that VA proceed with her claim. No records have been
received by VA from Memorial Hospital and the veteran was
again made aware of this in an April 2007 supplemental
statement of the case.
Significantly, neither the appellant nor her representative
has identified, and the record does not otherwise indicate,
any additional existing evidence that is necessary for a fair
adjudication of the claim that has not been obtained or, as
explained above, that VA has not carried out its duty in
seeking to obtain. Hence, no further notice or assistance to
the appellant is required to fulfill VA's duty to assist the
appellant in the development of the claim. Smith v. Gober,
14 Vet. App. 227 (2000), aff'd 281 F.3d 1384 (Fed. Cir.
2002); Dela Cruz v. Principi, 15 Vet. App. 143 (2001); see
also Quartuccio v. Principi, 16 Vet. App. 183 (2002).
ORDER
Entitlement to service connection for post traumatic stress
disorder, to include as the result of personal assault, is
denied.
____________________________________________
JOHN J. CROWLEY
Veterans Law Judge, Board of Veterans' Appeals
Department of Veterans Affairs